04.05.2005
Secrets and lies
Mike Macnair looks at Lord Goldsmith's legal advice and the role the working class should play in challenging the British constitutional monarchy
On April 27 the government finally published the full text of the advice on the legality of invading Iraq which Lord Goldsmith, the attorney-general, gave prime minister Tony Blair on March 7 2003. For two years the government had resisted demands from the opposition parties for publication of the advice, but its hand was forced when part of it was leaked to the press. The full advice can now be read on the Guardian website (http://image.guardian.co.uk/sys-files/Guardian/documents/2005/04/28/legal.pdf), together with various other sites. It shows substantial doubts about the legality of the invasion in international law and identifies a risk of prosecution of British military personnel and senior political figures. It can be compared with Goldsmith's advice 10 days later (March 17 2003), published at the time, which claimed the invasion was clearly legal (http://www.guardian.co.uk/Iraq/Story/0,2763,1471659,00.html). To add to the picture, The Observer has claimed (May 1) that the March 17 version reflects the views of US pro-war lawyers whom Goldsmith met in February 2003, and whose arguments are doubted in the March 7 advice. And The Sunday Times (May 1) has published the minutes of a meeting of July 23 2002 between Blair, Geoff Hoon, Jack Straw, Goldsmith, Admiral Boyce (chief of defence staff), intelligence chiefs Scarlett (joint intelligence committee) and Dearlove (MI6), and several senior civil servants and advisers, including Alistair Campbell. If it is genuine, and it appears that it is, here we have the 'smoking gun' which proves that Blair and his immediate advisers had decided in June-July 2002 to go along with US president Bush's prior decision to invade Iraq in order to impose 'regime change'. Their problem was how to sell this plan to the British public and to those who doubted the legality of the idea. None of this is really new information. We already knew from US sources that Blair had decided to go along with Bush's plan in 2002. We already knew that the legality of invading Iraq was at best debatable, and that lawyers within as well as outside the civil service were sceptical. Perhaps to the surprise of many opponents of the war, it seemed to have rather marginal effects on Labour's standing in the polls. Only 3% of poll respondents indicated that the war would be a main factor in their voting decisions, and before May 5 the polls stubbornly gave a picture of Labour in the high 30s, Tories in the low 30s, Lib Dems (who sold themselves as anti-war) on around 21%, and 'others' around 8% in total. I have already argued more than once in these pages that arguing against the invasion and occupation of Iraq on the basis that it is illegal is a political trap ('The war and the law', September 25 2003; 'Which way forward', March 17 2005). The apparent damp-squib effect of the revelation of Goldsmith's March 7 2003 advice tends to confirm this view. What is more important is the constitutional issues posed by the government's attempt to keep the advice secret and publish only a one-sided interpretation of it. The case for war There is, however, a small but important point to be made about the case for the legality of the invasion which is suggested in Goldsmith's March 7 advice and relied on in his March 17 document. The core of the argument was that Britain and the US were already legally at war with Iraq. The argument is that in security council resolution 678 (1990) the UN authorised the use of military force against Iraq following the invasion of Kuwait. After the military operations of 1991, resolution 687 (1991), authorised a ceasefire on certain conditions (including 'weapons inspectors') but did not terminate the war begun in 1991 under resolution 678. According to the pro-invasion argument, breaches of resolution 687 by the Iraqi regime therefore 'revived' resolution 678 and provided immediate legal authority for the renewed use of force in 1993 and 1998. Resolution 1441 (2002) was therefore not necessary to give the US and Britain the legal authority to use force, but by stating that the Ba'athist regime was in breach of the terms of resolution 687 it confirmed that they were entitled to do so. As a legal argument this is fairly questionable. But it contains within it an important political truth. The war on Iraq started in 1990-91. Before the world of 'UN sanctions' no-one would have doubted that imposing a naval and trade blockade on a foreign state, or air raids and no-fly zones, were acts of war. It was George Galloway's great merit to recognise this war and oppose it when almost no-one else did. On the reverse of this coin, the arguments of liberal and social democratic opponents of the invasion that sanctions were a 'peaceful alternative' to war was disgusting Newspeak. The publication of Lord Goldsmith's advice therefore should draw our attention to an aspect of the lies we have been told about Iraq: the lie that we were not at war with Iraq between 1991 and 2003, and the lie that presents 'sanctions' as something other than acts of war. 'Legal professional privilege' A major argument put forward by government supporters for not revealing Goldsmith's March 7 advice was that it was covered by 'legal professional privilege' (called in the US 'attorney-client privilege'). This is a legal rule which says, broadly, that a lawyer and his client cannot be compelled to reveal in a trial what the client said when asking for legal advice or the advice the lawyer gave. In practice it is mostly about documents passing between lawyer and client rather than about spoken exchanges. The underlying principle of legal professional privilege will have some validity as long as we have laws and lawyers. The problem is that trials are about two sorts of dispute: what has happened (facts) and, once it is decided what has happened, what ought to happen (law). But both are often rather murky. To take a simple example, Colin may remember a road accident as having happened because, while he was driving on the main road at a safe speed, David pulled out of a side road without looking and Colin could not stop. David may think that Colin was driving far too fast, with the result that, though David looked around and pulled out when there seemed to be space, Colin came out of nowhere and hit him. These can both be perfectly honest recollections, though one or both must be wrong. The other witnesses will have told a variety of different stories, and 'scientific evidence' (eg, police analysis of skid-marks) will not always reveal a clear 'true story'. The law says that road users owe a 'duty of care' to one another, as a result of which if either driver has been careless he will be liable to compensate the other. Where the victim of an accident has also been careless, the judge is allowed to reduce the amount of compensation payable. But these rules are somewhat vague, and how judges will apply them is not entirely predictable. The result is that the competent lawyer will advise her client that there are a range of possible results. She will need to advise her client not only on the basis of her client's story, but also on the basis of the other side's story and of 'worst-case' assumptions. This advice helps the client judge probabilities and risks, and thus whether to fight or settle. (From this point of view, Goldsmith's March 7 advice was a 'worst-case version'. His March 17 advice was a 'best-case version'.) If the 'worst case version' could be used as evidence by the other side, the result would be to bias the judge or jury in favour of this version (because it seems to be a confession by the party). To avoid this consequence, lawyers would tend to advise their clients only on the 'best case version': and as a result fewer people would settle claims when they ought to. For this reason the law allows client and lawyer to withhold evidence of what was said when the client sought legal advice: the information is 'privileged'. The argument applies equally to criminal trials, since there too memories are often ambiguous and legal rules have murky borders. There are exceptions. The most important is that if I go to my solicitor for advice as to how to get away with a future crime - for example, murdering my wife or husband, or stealing from my employer - neither what I said nor what the solicitor said is privileged. (Indeed, the solicitor is supposed in this situation to report the client to the police, though few do.) We could argue that Iraq is an example: Blair and co proposed to participate in Bush's international crime (waging a war of aggression) and asked Goldsmith to find grounds they could fake up to make it appear legal. But this gets us into the morass of Blair and co's subjective motivations and whether they honestly but unreasonably believed the Ba'athist regime had weapons of mass destruction, and so on. The privilege is the client's. This means that if the client releases the information, the lawyer can no longer keep it secret. On this basis it should be obvious that from the standpoint of political democracy, legal professional privilege should be utterly irrelevant to advice given by the attorney-general to the prime minister for the purposes of a decision such as to invade Iraq. The privilege is the client's: and the client here is not a private individual but a publicly elected representative. The March 17 advice, which was published, was intended to persuade parliament to vote for the invasion. Parliament purportedly acted on our behalf in taking that decision. It is parliament and behind it the people represented which was thus 'the client' which should have had access to the worst-case advice (March 7), not just the best-case (March 17). Monarchy In English law, however, the government's argument from legal professional privilege is not so clearly wrong. The reason for this is that the prime minister is not technically an elected representative. He merely happens to be an MP. He is the queen's servant, appointed by her. She could legally appoint someone who was not the leader of the majority party in the Commons (as happened in Australia in 1975). The 'client' is thus the queen. Equally clearly, the attorney-general is technically a lawyer retained by the queen to advise her (and her other ministers). Hence the Queen and her prime minister are entitled to legal professional privilege for her advice. Lord Goldsmith is not even an elected MP, but a member of the House of Lords. Several commentators have suggested that one conclusion to be drawn from this affair is that the attorney-general should in future be a member of the House of Commons and answerable to it. The real lesson to be drawn from this point is more fundamental. In Britain, the specific form taken in law by the murky anti-democratic structures of the state is monarchism. The continued monarchism of British constitutional law is a standing argument against the accountability of our elected representatives and governors to us. Fighting for real democracy in Britain requires fighting for the overthrow of the constitutional-monarchy system and for a democratic republic. Cabinet confidentiality The government's second argument against disclosing Goldsmith's March 7 advice was that it was necessary to preserve cabinet confidentiality: the secrecy of what is said in the cabinet and to ministers in the course of forming policy. Now that we have seen the advice, it seems that the defence of this principle was probably the real reason for denying it even existed and fighting against disclosing it. The advice is mildly embarrassing to Blair's claims to have had a good case for invading Iraq, but only mildly: much less so than the total failure to find weapons of mass destruction and the evidence that the intelligence for their existence was weak and 'spun' in the dodgy dossiers. So the government wanted to keep this advice secret not for its own sake, but in order to avoid a 'bad precedent' of being forced to disclose other secret information. The document printed by the Sunday Times is a good example. It tells us that Blair and his closest advisers were planning to invade Iraq in June-July 2002. "We should work on the assumption that the UK would take part in any military action," the minute says the meeting decided, as well as reporting that "the NSC [US national security council] had no patience with the UN route" and there were two alternative military approaches under consideration by US planners. This is not the sort of information that any government in the world as it is would be happy to see disclosed to all ministers, let alone elected representatives or the general public. The theoretical constitutional case for cabinet confidentiality in Britain is the idea of cabinet collective responsibility. The roots of this idea date to a time when party discipline in the House of Commons was a lot weaker. The prime minister was therefore the person who could assemble a majority coalition in the House of Commons. The cabinet in this regime reflected the different trends in the Commons majority. It was therefore a place where horse-trading was done. Keeping the majority together required the cabinet members to come to a decision collectively and shut up about their differences when they had done so (or, if they could not stick the decision, to resign). This regime needed the discussion and horse-trading within cabinet to be kept quiet. More recently, British politics has moved towards an 'elective monarchy' in the person of the prime minister. Cabinet posts are handed out as a form of patronage. The inner life of the cabinet (revealed by political diaries some years after the event) is more like that of a renaissance court than the collective leadership regime of the 18th and 19th centuries. As a result, cabinet confidentiality has acquired a new and wider rationale. This is that openness would inhibit 'candour': ie, people are less likely to say what they think if they know they are going to be reported. The Sunday Times document again provides a good example both of what is meant by this, and of its limits. The message to be drawn from it is that at least Blair and Straw thought that it would be in the best interests of the UK state to be onside with US military action if it was politically possible (Straw being a little more cautious than Blair and leaning towards the option of getting a security council ultimatum to back an invasion). Among the other participants, Scarlett looks strongly positive for invasion, Dearlove, Boyce and Goldsmith more cautious. If any of this had been published in July 2002, it would have made severe difficulties for the plans identified by Blair and Straw in the document to create British political support for an invasion. But the 'renaissance court' character of cabinet life under the elective monarchy of the prime minister means that the comments of those participants who are not so keen is extremely coded. Secrecy has here not produced candour. It is merely a vehicle for an attempt to suppress doubts and difficulties. In the event, it was unsuccessful. Important elements of the state core leaked and briefed against the invasion plan throughout the run-up, and this split - reflected also in the media - helped create the conditions for the mass demonstrations of February-April 2003. The underlying problem is that Blair was almost certainly right to assess that it was in the best interests of the UK capitalist state to be onside with Bush's invasion plans. The UK state has since the 1939-45 war been heavily dependent on the US. Since 1972 it has played the role of the US's Trojan horse in the councils of the European Union. Since Thatcherism it has also played the role of a poster-child for neoliberalism. If the UK openly opposed some major US project, it is far more vulnerable to US retaliation than France, and could hardly expect much sympathy or assistance from France or Germany. Moreover, UK capital's existing overseas commitments - proportionately far greater than the continental countries - mean that it has a genuine direct interest in preserving the US-led world order. But none of this can be said openly to the electors (or, probably, the majority of Labour MPs) as a justification for invading another country. It is in the interest of the UK state to send UK soldiers to kill and be killed in foreign countries for the sake of the alliance with the US and in the international interests of British capital. But it is not in our interests. To persuade us that we should support this action, we have to be told soothing stories about international law, weapons of mass destruction, and so on. Cabinet confidentiality and 'candour' in relation to 'policy advice' are thus necessary to the British government because there is a conflict between the interests of the UK state and its capitalist paymasters, and the interests of its subject population (us). This conflict requires government and politicians to lie. But in order to be able to lie effectively, they need to be able to keep secrets. Put the other way round, they lie in order to keep secret the underlying fact that they serve not the people, but capital. Not new Neither the recognition that secrecy is a means of elite rule over the majority nor the demand for the abolition of secrecy are new ideas in the workers' movement. Marx's 1842 Rheinische Zeitung articles on the freedom of the press include the idea that public affairs should be carried on in public. Lenin in the summer of 1917 wrote repeatedly on the demand for the abolition of commercial secrecy as an essential element in the struggle against the economic crisis then affecting Russia. One of the Bolsheviks' first acts was to publish the secret treaties by which the tsarist regime and its entente imperialist partners had planned to divvy up the world in the event of victory. Following Lenin, Trotsky's 1938 Transitional programme includes - rightly - the demand for the abolition of commercial secrecy (the economistic aspect of its overall perspective had the unfortunate result that the demand for the abolition of state secrecy became lost). 'Candour' and secrets on the left In the light of this history it is surprising that we hear repeated arguments for 'candour' as justifying secrecy in their internal affairs from the organisations of the left. The Weekly Worker is widely condemned for publishing 'internal information' of other groups or 'speculation' about their activities and debates, and efforts are made to exclude us from meetings on the ground that we might (horrors!) report what happened at them. The groups' internal life finds no reflection in their own press, which appears to offer a monochrome unity. The explanation given for this struggle for secrecy is that party members, or party leaders, need to be able to speak with the appropriate 'candour' in their internal discussions without the fear that what they say might wind up being published. However, just as in the government document published by The Sunday Times, when the Weekly Worker does get hold of these materials candour is strikingly lacking. Dissent takes coded forms: as, for example, in the critical internal documents from the Socialist Workers Party 2004 pre-conference discussion we reported and published (Weekly Worker November 11, 18 and 25 2004). The style is that of the humble submissions of renaissance courtiers and parliamentarians and the 'nuances' studied by Kremlinologists. Somehow secrecy does not seem to be producing candour ... The truth is that secrecy is completely opposed to political democracy. Secrets become a kind of private property: the property of the central full-time staff of the party. On the basis of access to this property, full-timers build up chains of patron-client relationships through selective distribution of information. These in turn set limits on what can be said. The result is that party members do not meet as equals, but on the contrary party meetings take the form of top-down rallies, or at most of opportunities to express 'renaissance court'-style coded dissent; or to distinguish yourself in the eyes of your superiors by willingness to crack down on dissent. Secrets and lies are two sides of the same coin. The lies protected by the secrets are the pretence of an SWP to be much bigger than it actually is, or of communist organisations like the SWP, International Socialist Group, Socialist Party and so on to be no more than the 'best fighters' for reformist positions. The secret of secrets protected by the lies is that these organisations claim to be democratic, but are actually bureaucratic-centralist: that is, that the interests of their minuscule party apparatuses are in control, not the interests of the working class. There is thus a real contradiction behind left secrecy. It mirrors in miniature the contradiction which drives 'cabinet confidentiality'. The workers' movement urgently needs to fight for consistent, extreme democracy. This is the only way to learn the lessons of the calamitous 20th century, and to set ourselves the task of overcoming the tragic and criminal history of the Stalinist bureaucratic dictatorship, rather than endlessly repeating it as small-scale farce. The movement therefore needs to set its face firmly against the whole apparatus of secrets and lies. That means against the government regime built on secrets and lies - which in Britain means the monarchical constitution, in France the Fifth Republic, in the US the executive presidency, and so on. But it also means against the regime of secrets and lies in its own ranks: in the ranks of trade unions, left parties and campaigning organisations. Only when organisations and leaderships act and debate in the public light of day can they begin to function democratically - and offer any sort of serious alternative to capital's truncated and bastardised 'democracy'. Mike Macnair
Worker